Ragozzine v. Youngstown State University et al

Filing 64

Memorandum of Opinion and Order For the reasons set forth herein, the Court grants Defendants' 53 Motion for Summary Judgment in its entirety. The case is dismissed. Judge Benita Y. Pearson on 2/24/2014. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DR. FRANK RAGOZZINE,
Plaintiff,
v.
YOUNGSTOWN STATE UNIVERSITY, et
al.,
Defendants.

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CASE NO. 4:13cv750

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF No. 53]

Pending before the Court is the Motion for Summary Judgment filed by Defendants
Youngstown State University (“YSU”), Cynthia Anderson and Karen Giorgetti (collectively
“Defendants”). ECF No. 53. Plaintiff Frank Ragozzine responded, ECF No. 55, and Defendants
replied, ECF No. 58. Defendants also filed a Joint Proposed Stipulation of Facts, ECF No. 52.
The Court has been advised, having reviewed the record, the parties’ briefs, the
applicable law and, at the request of Ragozzine, heard oral argument on February 4, 2014. For
the reasons explained below, the Court grants Defendants’ motion.
I. Background
A. Undisputed Facts Regarding Ragozzine’s Tenure Bid
Ragozzine was hired by YSU as a tenure track Assistant Professor of Psychology on
August 21, 2006. ECF No. 11 at 2, ¶7. Prior to joining YSU, Ragozzine was an Associate
Professor with tenure at Missouri State University. Id. He gave up both tenure and the rank of

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Associate Professor to accept the lower ranked position at YSU. Id.
At YSU, Ragozzine was on a five-year tenure track program, and was scheduled to apply
for tenure in the fall of 2011. Id. at 3, ¶22. In August 2011 Ragozzine requested a postponement
of tenure review for one year. Id. at ¶21. He requested the postponement because his mother’s
and wife’s “severe health problems during the preceding year had substantially interfered with
his ability to get his scholarly work written and submitted for publication, jeopardizing his
chances of obtaining a positive tenure decision in 2011.” ECF No. 52 at 4, ¶36. YSU’s Provost
approved Ragozzine’s request, and, accordingly, Ragozzine applied for tenure one year later, in
the fall of 2012. Id. at 2, ¶2.
At YSU, tenured faculty in a tenure candidate’s relevant department: (1) review the
tenure candidate’s tenure application; (2) view the candidate’s presentation; (3) then vote for or
against tenure via secret ballot. ECF No. 11 at 3, ¶23; 49-5 at 25. In the instant case, eight
tenured faculty in the Psychology Department officially voted on Raggozine’s tenure—four voted
in favor and four voted against.1 ECF No.11 at 4, ¶24. During the vote, one additional tenured
faculty member whom was then on sabbatical, Jeffrey Coldren, also voted against Ragozzine’s
tenure. ECF No. 52 at 2-3, ¶¶10, 13. Coldren had reviewed Ragozzine’s personnel files inperson on campus prior to the vote and had observed Ragozzine’s tenure presentation via Skype.2
Id. at 2, ¶11; at 4, ¶29.
Pursuant to the Collective Bargaining Agreement (“CBA”), after the tenured faculty

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All eight professors are identified by an identifying number, not by name.

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Skype is an online service that permits individuals to see and hear one another.
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votes the Psychology Department Chair makes a recommendation to award or deny tenure to the
Dean of the College of Liberal Arts and Social Sciences. Id. at 2, ¶3; at 3, ¶16; ECF No. 49-5 at
25. The Psychology Department Chair, Karen Giorgetti, recommended to Dean Shearle Furnish
that Ragozzine be denied tenure. ECF No. 52 at 3, ¶14. When Chair Giorgetti provided her
recommendation to Dean Furnish, she reported the four-four vote and that, although Coldren was
not permitted to officially vote, he voted against tenure. Id. at ¶15. Giorgetti further explained
that she noted Coldren’s vote to indicate a majority faculty decision. Id.
Dean Furnish concurred with Giorgetti’s recommendation to deny tenure and forwarded
this recommendation to the Provost, per the CBA. Id. at ¶16. The Provost, Ikram Khawaja,
concurred with both Giorgetti’s and Furnish’s recommendations and, per the CBA, transmitted
his recommendation to deny tenure along with those of Giorgetti and Furnish and the department
faculty vote to YSU’s President, Cynthia Anderson. Id. at ¶17. President Anderson denied
tenure to Ragozzine after reviewing the recommendations of the Chair, Dean, and Provost. Id. at
¶18.
Ragozzine appealed the tenure denial. Id. at ¶20. The Tenure Denial Review Committee
(“TDRC”), comprised of non-Psychology Department faculty, unanimously found that
Ragozzine’s tenure denial was wrongfully made. Id. at ¶¶21, 22. Thereafter, President
Anderson, on March 5, 2013, notified Ragozzine that, after reviewing the TDRC’s report, she
had decided to affirm the recommendation of the Chair, Dean, and Provost to deny him tenure.
Id. at ¶23. Anderson’s decision denying tenure to Ragozzine was final and binding on all parties.
Id. at ¶24.

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B. The Tenure Review Process
A brief description of the guidelines governing YSU’s tenure review process is in order.
Ragozzine’s tenure review process was governed by the CBA, the Psychology Department
Governance Document (“Governance Document”), and the codicil to Ragozzine’s letter of
appointment. Id. at 2, ¶6. In the event of a conflict between the CBA and the Governance
Document, the CBA prevails. Id. at ¶8.
Tenure candidates are evaluated in three categories: scholarship, teaching and service.
ECF No. 53 at 10; 55 at 12; 49-5 at 25. According to the CBA, the tenure review process
involves a “review of the candidate’s past contributions and an evaluation of the candidate’s
promise of satisfactory future contributions to the University” and is “based on the departmental
statement of normally expected activities and expectations for progress toward promotion and
tenure.” ECF No. 49-5 at 25. The Governance Document states that the process “will follow the
process and procedures listed in section 10a.3” of the CBA and reiterates the above quoted
“promise of satisfactory future contributions” language from the CBA. ECF No. 49-6 at 9. The
Governance Document also provides that the process will adhere to the codicil language, which
in general states,
Departmental expectations for receiving tenure include consistent evidence of
quality performance during the probationary period in the areas of scholarship,
teaching, and service. Specifically, the candidate must demonstrate a coherent
and active scholarly agenda as evidenced by two or more published articles in
refereed journals or equivalent production, effective teaching, and demonstrated
commitment to University and Community service.
ECF No. 49-6 at 9 (italics in original); see also ECF No. 49-7 at 1 (Ragozzine’s codicil).
Certain tenured faculty members, Chair Giorgetti, and Dean Furnish whom voted or
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recommended against tenure voiced concerns about Ragozzine’s scholarship. Specifically, the
reviewer’s noted that, although Ragozzine had published two peer-reviewed articles, he did not
do so until during 2011-2012—the extra year he was granted by the Provost for tenure
postponement. The reviewers noted that the timing of Ragozzine’s published works, in addition
to their quality, indicated to the reviewers that Ragozzine’s research lacked consistency and the
promise of future contributions. See ECF Nos. 49-45 at 2 (Chair Giorgetti’s tenure
recommendation); 49-46 (Dean Furnish’s tenure recommendation); 51-58, 59, 60 (faculty notes
on tenure denial).3
C. Ragozzine’s Claims
Ragozzine filed the instant lawsuit on April 4, 2013 alleging three claims against
Defendants. Count 1 is a claim for sex discrimination in violation of Title VII, 42 U.S.C. §
2000e et seq. against YSU, in which Ragozzine alleges that he was discriminated against on the
basis of his male gender. ECF No. 11 at 6, ¶49. Ragozzine contends that a female comparator,
Julie Boron, went through the tenure review process at the same time he did and was granted
tenure. Id. at ¶48. He alleges that YSU “failed and refused to grant [him] the same terms and
conditions of employment” as it did Boron. Id.
Count 2 is a 42 U.S.C. §1983 claim against Psychology Department Chair Giorgetti and
YSU President Anderson for a violation of Ragozzine’s Fourteenth Amendment rights. Id. at 7,
¶58. Ragozzine alleges that Giorgetti’s “solicitation and consideration of the opinion of a faculty

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Ragozzine received his most favorable reviews as teacher. See, e.g., ECF Nos. 46 at
19; 49-46.
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member who was not eligible to vote” denied Ragozzine both due process and equal protection.
Id. at ¶56. Ragozzine also alleges that President Anderson’s conduct amounted to a
constitutional violation because Anderson “failed to exercise her supervisory authority over []
Giorgetti and failed to act in accordance with the lawful procedures available to Plaintiff to
prevent a violation of 42 U.S.C. § 1983.” Id. at ¶57.
Count 3 is a claim alleging a violation of the Family Medical Leave Act (“FMLA”), 29
U.S.C. § 2601, et seq. against YSU. Id. at 8. Ragozzine alleges that he “took intermittent FMLA
leave and worked a reduced schedule so that he could care for his mother and spouse.” Id. at
¶64. He states that, because of the family illnesses, “he sought and was granted an additional
year within which to apply for tenure and to obtain the acceptance of scholarly articles for
publication required for tenure.” Id. He alleges YSU held him to “a higher standard regarding
requirements to gain tenure,” subjecting him to an adverse job action in retaliation for his taking
leave and violating his rights under the FMLA. Id. at ¶¶65-66. Specifically, Ragozzine alleges
that Chair Giorgetti criticized the timing and delay of his publications despite Ragozzine’s
assertion that he was, at that time, on intermittent FMLA leave. Id. at ¶64.
II. Legal Standard
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the

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burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The
non-moving party must, to defeat the motion, “show that there is doubt as to the material facts
and that the record, taken as a whole, does not lead to a judgment for the movant.” Guarino, 980
F.2d at 403. In reviewing a motion for summary judgment, the court must view the evidence in
the light most favorable to the non-moving party when deciding whether a genuine issue of
material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
The United States Supreme Court, in deciding Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986), stated that in order for a motion for summary judgment to be granted, there must be
no genuine issue of material fact. Id. at 248. A fact is “material” only if its resolution will affect
the outcome of the lawsuit. In determining whether a factual issue is “genuine,” the court must
decide whether the evidence is such that reasonable jurors could find that the non-moving party
is entitled to a verdict. Id. Summary judgment “will not lie . . . if the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.” Id. To withstand summary
judgment, the non-movant must show sufficient evidence to create a genuine issue of material
fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). The existence of a mere
scintilla of evidence in support of the non-moving party’s position ordinarily is not sufficient to
defeat a motion for summary judgment. Id.
III. Analysis
To limit redundancy and confusion, Ragozzine’s claims are discussed in reverse order.
A. The FMLA, 29 U.S.C. § 2601, et seq. Claim Against YSU
1. The Nature of the FMLA Claim
The parties disagree whether Ragozzine alleged a FMLA retaliation claim or a FMLA
interference claim in the First Amended Complaint. YSU’s motion advances arguments
supporting their position that Ragozzine cannot prove FMLA retaliation in violation of 29 U.S.C.
§ 2615(a)(2). ECF No. 53 at 29. Ragozzine, in opposition, contends that he alleged a FMLA
interference claim—that YSU violated 29 C.F.R. § 825.220(c), which “interprets the FMLA’s
interference provision to ‘prohibit[] an employer from discriminating or retaliating against an
employee . . . for having exercised or attempted to exercise FMLA rights.” ECF No. 55 at 18
(emphasis in original). Ragozzine argues that YSU did not properly move for summary
judgment on his FMLA interference claim and that Ragozzine is therefore entitled to “a jury trial
on that issue.” Id. n.3. YSU, in reply, asserts that it reasonably believed Ragozzine was alleging
a FMLA retaliation claim; that Ragozzine impermissibly advances new FMLA interference
arguments for the first time in his opposition brief; and that, regardless, the same legal standard

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and factual arguments apply to both types of claims, and that their arguments raised in their
motion brief may be applied to an interference FMLA claim. ECF No. 58 at 7-8.
The Court finds that the balance of the allegations in the First Amended Complaint,
specifically in Count 3, are ambiguous enough to encompass both a retaliation claim and an
interference claim. See ECF No. 11 at 8-9 (identifying Count 3 as a “retaliation” claim and
repeatedly using the word retaliation, while also citing 29 C.F.R. § 825.220(c)). See also Welty
v. Honda of Am. Mfg., Inc., 411 F.Supp.2d 824, 829 (S.D.Ohio 2005) (noting the “oftenconfusing scope of what constitutes interference” and citing other cases discussing “the current,
confusing state of FMLA law” while attempting to “reconcile the problematic use of applying the
labels interference, discrimination, and retaliation to FMLA claims” (internal citations and
quotation marks omitted)). Accordingly, the Court finds that YSU did not waive moving for
summary judgment on the FMLA interference claim, and that Ragozzine does not impermissibly
advance interference arguments in his opposition brief. Because Ragozzine states in his
opposition brief that his allegations may also be viewed as a FMLA retaliation claim and
analyzed under that theory, ECF No. 55 at 20, the Court considers Ragozzine’s FMLA claim
under both theories.
2. The Interference Claim
29 U.S.C. § 2615(a)(1) provides that “[i]t shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to exercise, any right provided under th[e]
[FMLA].” To prevail on an interference claim, a plaintiff must establish that,
(1) he is an “[e]ligible employee,” 29 U.S.C. § 2611(2); (2) the defendant is an
“[e]mployer,” 29 U.S.C. § 2611(4); (3) the employee was entitled to leave under
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the FMLA, 29 U.S.C. § 2612(a)(1); (4) the employee gave the employer notice of
his intention to take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer denied
the employee FMLA benefits to which he was entitled.
Wysong v. Dow Chemical Co., 503 F.3d 441, 447 (6th Cir. 2007) (quoting Cavin v. Honda of
Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003) (overruled on other grounds)). Ragozzine is
asserting a “negative factor” claim, see ECF No. 55 at 19, in which case the fifth element can be
established by showing that YSU used Ragozzine’s leave against him in an unlawful manner.
See Wysong, 346 F.3d at 447.
a. The Timeline of Ragozzine’s Publications
Ragozzine argues that his request for a one-year postponement of tenure review “due to
the time off he took to care for his relatives” was used as a negative factor by YSU when YSU
denied him tenure. ECF No. 55 at 24.
Ragozzine’s relevant time at YSU can be summed up as follows. He began teaching at
YSU in the fall of 2006. Id. at 10. He contends that he was unable to work on scholarly matters
until his “lab” was up and running, which occurred “into his second year,” in 2007/2008. Id.
The Court credits the lack of laboratory facilities as justification for Ragozzine not publishing a
peer-reviewed article or engaging in research in his first academic year (2006/2007). It remained,
however, that Ragozzine still did not have a peer-reviewed article published during his second
(2007/2008), third (2008/2009), fourth (2009/2010), or fifth (2010/2011) academic year. ECF
No. 49 at 157. Ragozzine’s wife became ill in the summer of 2010, before his fifth academic
year. See ECF No. 49-29. He requested postponement of tenure review a year later, in August
2011, shortly before he was scheduled to apply for tenure. ECF No. 49-29 at 1. His first peer-

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review article was published at the end of 2011. ECF No. 49 at 157. His other two peerreviewed articles were subsequently published in 2012 and 2013. Id. at 112-113. Although there
is some dispute as to whether one article is a qualifying article, at the time he applied for tenure,
in the fall of 2012, Ragozzine had objectively satisfied the tenure requirement of having
produced two peer-reviewed publications. ECF Nos. 55 at 9; 53 at 21.
The recommendations and faculty votes against Ragozzine’s tenure referenced the quality
and timing of Ragozzine’s scholarship, described above, and expressed a general belief that
Ragozzine did not work on meeting his scholarship requirements until his tenure review loomed
large. See ECF Nos. 51-58 (“it seems that [Ragozzine] may have assumed that tenure was
automatic . . . . It is only when it became apparent that this was not the case did his publication
efforts kick into high gear.”); 51-60 (“[Ragozzine’s] scholarship has been long in coming, and
seems to have reached its current level only as a last-minute flurry of activity in the year
extension he received of his probationary period.”); 49-45 at 2 (noting that Ragozzine, prior to
his 2011 publication, had no relevant scholarship publications since 2002); see also ECF No. 40
at 94 (Giorgetti testifying that, regarding Ragozzine meeting his two-article quota, “[i]t took him
over six years to do it.”). Ragozzine argues that these comments reflect “YSU’s perception that
Ragozzine fell short in the category of scholarship because his publications came in ‘the eleventh
hour’ (i.e. late in his probationary period).” ECF No. 55 at 25. He contends that, because he was
taking FMLA leave during his sixth year, YSU used the extra year he was taking leave as a
negative factor in its decision to deny him tenure. Id.
It is undisputed that Ragozzine was an eligible employee and YSU an eligible employer.

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Also undisputed is that Ragozzine was entitled to leave to care for his wife and mother, both
suffering from serious health conditions. The question is whether Ragozzine gave YSU notice of
his intention to take FMLA leave. See Wysong, 503 F.3d at 447.
b. The FMLA Notice Requirement
To invoke FMLA’s provision, an employee must request leave and give the employer
notice. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004). “An
employee does not have to expressly assert his right to take leave as a right under the FMLA.”
Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999). “Once an employer is given
notice that an employee is requesting leave . . . the employer bears the obligation to collect any
additional information necessary to make the leave comply with the requirements of the FMLA.”
Id. However, “nothing in the [FMLA] places a duty on an employer to affirmatively grant leave
without such a request or notice by the employee.” Brohm v. JH Properties, Inc., 149 F.3d 517,
523 (6th Cir. 1998),
“[T]he critical test for substantively-sufficient notice is whether the information that the
employee conveyed to the employer was reasonably adequate to apprise the employer of the
employee’s request to take leave for a serious health condition that rendered him unable to
perform his job.” Brenneman, 366 F.3d at 421. “An employee needs to both request leave and
when foreseeable, state the amount needed.” Id.
YSU contends that Ragozzine failed to give notice because he neither requested leave nor
did he ever take leave. ECF No. 58 at 9-11. Ragozzine identifies two ways in which he provided
notice—(1) a conversation Ragozzine had with Chair Giorgetti “[i]n the 2010/11 academic year”

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about his wife’s serious health condition; and (2) the August 2, 2011 letter Ragozzine sent to the
Provost requesting a one-year extension within which to file his application for tenure. ECF No.
55 at 21-22.
i. Ragozzine’s Conversation with Chair Giorgetti
Ragozzine alleges that he had a conversation with Chair Giorgetti sometime during the
2010/2011 academic year about his wife’s serious health condition.4 Id. at 22. He contends that
this conversation satisfied the FMLA’s notice requirement, “because Giorgetti was his immediate
superior.” Id.
YSU rejoins that the mere fact that Giorgetti knew Ragozzine’s wife was ill “does not
lead to the conclusion that YSU was on notice . . . that [Ragozzine] was seeking intermittent
leave under the FMLA.” ECF No. 58 at 9. YSU also provides:
The only relief Ragozzine requested from YSU involved spending more, not less
time at work—i.e., an extra year to complete research. He never requested leave
from work. Ragozzine, who claims to have read the CBA closely, chose to
exercise his right under Section 10.6 to gain an extra year to apply for tenure—a
benefit promptly granted to him by YSU—and not his rights under Section 7.4.1
to use FMLA leave or under Section 7.2.1 to take sick leave for a family medical
matter.
ECF No. 58 at 10-11 (internal citations to the record omitted). When deposed, Ragozzine
testified that, during the 2010/2011 academic year: he had never notified his immediate
supervisor (Giorgetti) that he would be taking sick leave to care for a family member or that the

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During his deposition, Ragozzine testified that prior to sending the August 2, 2011
letter, he had informed “the department secretary who would routinely ask me how my wife and
mother were doing.” ECF No. 49 at 93. He testified that Giorgetti “was present during some of
those conversations. At one point she called me in her office and said— her words were,
[‘]what’s the deal with your wife.[’] I explained it to her.” Id. at 93-94.
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problems necessitated taking leave (ECF No. 49 at 93-94, 97, 111-112); that although he
sometimes took paid leaving during the year, he did not know whether Giorgetti or anyone in the
human resource department knew he was taking it (id. at 92-93); and that he never took any
unpaid leave (id. at 92).
Moreover, Kevin Reynolds, Chief Human Resources Officer in the YSU Office of
Human Resources, swore that,
[a]s a member of the Ohio Education Association, Dr. Ragozzine was entitled to
15 days of paid sick leave each year during the 2010-11, 2011-12, and 2012-13
academic years. As of July 27, 2011, Dr. Ragozzine had accumulated 583.15
hours of paid sick leave. Human Resources records indicate that Dr. Ragozzine
did not use any paid sick leave until the spring of 2013.
ECF No. 53-2 at 2, ¶9.
Beyond telling Chair Giorgetti about his wife’s medical condition, Ragozzine does not
provide any evidence that he did anything else to indicate that he needed leave, was requesting
leave, or that he even took leave. Instead, the record reveals that Ragozzine did not request
leave; he did not indicate that he needed time off to care for his wife; he did not take time off to
care for his wife. In short, Ragozzine does not establish that he gave Giorgetti information
reasonably adequate to apprise her of a request to take leave to address a serious health condition
that rendered Ragozzine unable to perform his job. See Brenneman, 366 F.3d at 421. Binding
legal authority does not allow for the proposition that an employer’s awareness, alone, of a
family health problem is tantamount to an employee’s request for FMLA leave or that such
awareness triggers an obligation on the part of the employer to provide FMLA leave information.

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Ragozzine has not provided legal authority that indicates otherwise.5
ii. Ragozzine’s Letter to the Provost
Ragozzine also contends that he sought intermittent FMLA leave in his August 2, 2011
letter to the Provost requesting a one-year postponement of tenure review, per the CBA. ECF
No. 55 at 22. YSU accurately points out that the letter is written entirely in the past tense, i.e.,
discusses past family health problems, that caused Ragozzine to request the extra year to
accomplish his tenure requirements and not that he was seeking prospective FMLA leave. ECF
No. 53 at 31.
Ragozzine’s August 2, 2011 letter states, in part:

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Although Ragozzine cites a number of cases in his brief, the facts in those cases include
something more than an employer’s mere knowledge of medical problems, alone. See, e.g.,
Perry v. Jaguar of Troy, 353 F.3d 510, 512 (6th Cir. 2003) (notice requirement met when
employer knew employee’s son was disabled; employee told supervisor he needed time off work
to care for his son; and employee filled out a company leave form); Barrett v. Detroit Heading,
LLC, 311 Fed. App’x 779, 791-2 (6th Cir. 2009) (notice requirement met when employer knew
employee had severe and disabling hypertension; employee’s doctor signed numerous slips
excusing employee from work for extended periods of time; and on the day employee was fired
for being absent, his wife and his doctor had communicated to employer the need for a day off
due to employee’s urgent hypertension issue and his wife did request the day off); Wiseman v.
Awreys Bakeries, LLC, 528 Fed. App’x 428, 429, 431-32 (6th Cir. 2013) (issue of fact as to
whether employee gave proper FMLA notice when he told employer he “was injured” and “could
not work” because of a back injury he sustained at work, after having had time off due to an
initial back injury; in addition employee filled out an injury report form at work and asked to
visit the company health clinic); Bradley v. Mary Rutan Hosp. Assoc., 322 F. Supp. 2d 926, 94445 (S.D.Ohio 2004) (issue of fact as to whether plaintiff gave notice when she “called off” work
numerous times because her husband was ill and indicated to her employer that she may need to
become part-time to care for her husband); Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 717,
725 (6th Cir. 2003) (notice sufficient when employee informed employer he was injured in a
motorcycle accident and unable to work and then requested leave); O’Hara v. Mt. Vernon Bd. of
Educ., 16 F.Supp.2d 868, 873, 890 (S.D.Ohio 1998) (notice sufficient when plaintiff filled out
forms requesting maternity leave and correspondence “repeatedly referred to the FMLA”).
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I am writing to request a postponement of my tenure review, due to the severe
health problems of two of my family members over the past year. These
unforeseen problems have substantially interfered with my ability to get my
scholarly work written and submitted for publication, thus jeopardizing my
chances of obtaining a positive tenure decision this year.
ECF No. 49-29 at 1. The letter goes on to describe the illnesses of Ragozzine’s wife and mother
“[i]n the past year.” Id. The letter continues,
As a result of these problems, I have spent countless hours over the past year in
hospital rooms and doctor’s offices, and in caring for my wife and my mother. If I
had known that these problems were going to occur, I would have requested a
leave of absence so that I could take care of my family, but these events were
unexpected. Nevertheless, despite these problems, I was still able to meet my
teaching and committee-work obligations, and only missed one day of
classes during spring semester. However, I simply did not have time to do things
such as analyze my data, write scholarly manuscripts, and submit my work for
publication. As a result, I have not yet obtained a first-author peer-reviewed
publication since arriving at YSU. . . . Therefore, I suspect I would be
unsuccessful if I applied for tenure this year.
Id. (emphasis added). The provost granted Ragozzine’s request for an extra year to apply for
tenure.
Although Ragozzine now asserts that he “was seeking leave to care for his wife and
mother,” the letter does not support this view. ECF No. 55 at 12. The letter recites past events
and requests a one-year postponement of tenure review, indicative of Ragozzine’s inclination to
spend the time working to meet his tenure goals knowing that he would “be unsuccessful” if he
applied for tenure in 2011. By all accounts Ragozzine did, in fact, spend the extra year meeting
his tenure goals— not taking time away from YSU to care for family.6 Ragozzine does not

6

Ragozzine does not advance the argument that the letter retroactively requests FMLA
leave for the preceding academic year, nor would such an argument be tenable. See 29 C.F.R. §
825.303(a) (“Timing of notice. When the approximate timing of the need for leave is not
16

(4:13cv750)
dispute that he did not publish any peer-reviewed articles during his time at YSU until the end of
2011. ECF No. 49 at 157. All of his publications while at YSU were produced during his oneyear extension, the time during which Ragozzine now argues that he was taking intermittent
FMLA leave. See ECF No. 55 at 22.
Ragozzine posits, in his brief, that Dean Furnish “had also seen the August 2nd letter, and
knew that Ragozzine was seeking leave to care for his wife and mother.” ECF No. 55 at 11-12
(citing Furnish’s deposition, ECF No. 46 at 23-24). Ragozzine’s assertion is simply not
supported by the record. While being questioned by Ragozzine’s counsel, Dean Furnish’s
deposition went as follows:
Q: Did you discuss the contents of [the August 2, 2011] letter with the provost?
A: Not in detail.
Q: Did he mention it to you?
A: Oh, yes. He wanted to know what my position was.
Q: And what was your position?
A: My position was that I was not against postponement.
Q: Did you talk about whether or not he should be given leave?
A: No, just stopping the clock.
Q: When you decided to stop the clock, did you consider whether or not it would
change his tenure requirements?
A: No, because it should not change the tenure requirements. They simply are
what they are. It did occur to me that we may have changed his case from
unlikely to possible.
Q: Unlikely what?
A: Unlikely to achieve tenure.
Q: And is there a form for that?
A: No.
Q: What about you made that change?
A: That change? Oh, you mean the decision on stopping the clock?

foreseeable, an employee must provide notice to the employer as soon as practicable . . .”); see
also ECF No. 49 at 91 (Ragozzine’s deposition wherein he testified that he was able to schedule
some of his wife’s medical appointments).
17

(4:13cv750)
Q:
A:
Q:
A.

No. If I wanted to know what his ranking was, unlikely or possible?
No, there is no form for that.
As you understood it, why was Dr. Ragozzine seeking leave?
For the health of his wife and mother.

ECF No. 46 at 22-24. Dean Furnish did not testify that Ragozzine was prospectively seeking
time off to care for his wife and mother. Rather, Furnish understood Ragozzine’s request for
tenure postponement was because of the health concerns of Ragozzine’s wife and mother. The
August 2011 letter explains Ragozzine’s reasons for postponement. Ragozzine has not shown
that the August 2, 2011 letter to the Provost is evidence of an intent or attempt by Ragozzine to
request FMLA leave.7
Ragozzine also contends that “YSU cannot establish it properly disseminated its FMLA
policy.” ECF No. 55 at 23. He claims “YSU has not satisfied its burden under 29 C.F.R.
825.300(a)(3) that this policy was included in ‘employee handbooks or other written guidance to
employees,’ or was distributed in any other way to Ragozzine.” ECF No. 55 at 23. This
argument fails—the CBA clearly provides an explanation of FMLA benefits. See 49-5 at 19.
2. The Retaliation Claim
To prove a FMLA retaliation claim, a plaintiff must establish (1) he was engaged in
protected activity; (2) the employer knew he was exercising FMLA rights; (3) he suffered an
adverse employment action; and (4) the protected FMLA activity caused the adverse action.
Seeger v. Cincinnati Bell Telephone Co., 681 F.3d 274, 283 (6th Cir. 2012). In the absence of

7

Ragozzine argues that his conversation with Giorgetti combined with Giorgetti’s
knowledge of the August 2, 2011 letter to the Provost is adequate notice to Giorgetti of his
attempt to take FMLA leave. ECF No. 55 at 22. This argument is unavailing because neither the
conversation nor the letter evince Ragozzine’s attempt to take intermittent FMLA leave.
18

(4:13cv750)
direct evidence to establish a prima facie case of discrimination, the framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Id. If a plaintiff establishes a
prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its action. Id. at 284; McDonnell Douglas Corp., 411 U.S. at 802. When a defendant
succeeds in doing so, the final burden shifts to the plaintiff to prove that the defendant’s stated
reason is false, and that unlawful discrimination was the real reason. Seeger, 681 F.3d at 285.
Ragozzine submits that he “has ‘direct’ evidence of retaliatory motive, in the form of
Giorgetti’s statements.” ECF No. 55 at 20. Ragozzine does not identify those statements. The
Court notes that Ragozzine, throughout his brief, does not identify statements made by Giorgetti
that are direct evidence of a retaliatory motive against Ragozzine for taking FMLA leave. For
example, in order to consider Giorgetti’s comments that it took Ragozzine six years to meet the
tenure requirements as evidence of discrimination requires an inference that Giorgetti was
referring to Ragozzine’s care of his family and not his inconsistency in scholarship, which is well
documented. See Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 708 (6th Cir. 2008) (“general,
vague, or ambiguous comments do not constitute direct evidence of discrimination because such
remarks require a factfinder to draw further inferences to support a finding of discriminatory
animus.”).
Although it appears that Ragozzine may have been eligible to take FMLA leave, there is
no indication that he did so.8 Rather, as discussed above, Ragozzine did not engage in protected

8

Ragozzine seeks an expansion of the law. The Court is not aware of binding case law
that holds different standards should apply to work produced by an employee when he has family
health issues that would have justified FMLA leave or that has a retroactive effect.
19

(4:13cv750)
activity. He did not provide notice to YSU. Accordingly, he is unable to establish a prima facie
case under either FMLA theory of recovery. See Wysong, 346 F.3d at 447; Seeger, 681 F.3d at
283. The Court grants summary judgment in favor of YSU on the FMLA claim.
B. The Title VII, 42 U.S.C. § 2000e et seq. Claim Against YSU
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race,
color, religion, sex, and national origin in the terms and conditions of employment. 42 U.S.C. §
2000e-2(a)(1). To succeed on a Title VII claim, a plaintiff must either produce direct or
circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004).
Ragozzine does not argue he has evidence of direct discrimination, so he must prove a prima
facie case by establishing, by a preponderance of the evidence, that: (1) he was a member of a
protected class; (2) he was qualified for the position; (3) he suffered an adverse employment
action; and (4) that others, similar to him in all respects other than membership in the class at
issue, did not suffer the same adverse action. See McDonnell Douglas Corp., 411 U.S. at 802;
Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006). In a “reverse
discrimination” case, e.g., a man alleging sex discrimination, a plaintiff must also show
“background circumstances to support the suspicion that the defendant is that unusual employer
who discriminates against the majority.” Id. (quotation marks and citation omitted).
If a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for its action. Id.; McDonnell Douglas Corp., 411 U.S. at
802. When a defendant succeeds in doing so, the final burden shifts to the plaintiff to prove that
the defendant’s stated reason is false, and that unlawful sex discrimination was the real reason.

20

(4:13cv750)
Harris v. Metro Gov’t of Nashville & Davidson Co., 594 F.3d 476, 486 (6th Cir. 2010).
1. Prima Facie Case
The parties disagree as to whether Ragozzine has to show background circumstances that
YSU is the unusual employer that discriminates against men. See ECF No. 53 at 17; 55 at 21.
Despite Ragozzine’s argument to the contrary, the Sixth Circuit requires a plaintiff alleging a
reverse gender discrimination claim to establish background circumstances that the defendant is
the “unusual employer” that discriminates against the majority in order to state a prima facie
case. See Zambetti v. Cuyahoga Community College, 314 F.3d 249, 256-57 (6th Cir. 2002);
Gielda v. Bangor Twp. Schools, 505 Fed. App’x 550, 555 (6th Cir. 2012) (table). To show
background circumstances, a plaintiff must show evidence of the defendants’ unlawful
consideration of gender as a factor in hiring or promotion in the past that “justifies a suspicion
that incidents of capricious discrimination against [men] because of their [gender] may be
likely.” Zambetti, 314 F.3d at 256.
The parties also disagree about what background facts are sufficient to meet the
requirement. In Zambetti, a reverse discrimination case based on race, the Sixth Circuit found
that a Caucasian plaintiff alleged facts sufficient to create a genuine issue of fact on background
circumstances because the person in charge of hiring was African-American. 314 F.3d at 257.
Ragozzine argues that because the person in charge of the ultimate tenure decision was female,
he has alleged sufficient background facts. ECF No. 55 at 31. YSU contends that the Sixth
Circuit has not applied the Zambetti holding, applicable to race reverse discrimination cases, to
reverse gender discrimination cases, and the mere fact that a female ultimately denied Ragozzine

21

(4:13cv750)
tenure is insufficient evidence of background facts. ECF No. 58 at 14.
The Court need not address this issue because, assuming arguendo that Ragozzine has
established a prima facie case, he has not shown that, pursuant to the McDonnell Douglas
framework, YSU’s stated legitimate, nondiscriminatory reason is false, and that unlawful sex
discrimination was the real reason he was denied tenure.
2. McDonnell Douglas Framework
a. YSU’s Legitimate, Nondiscriminatory Reason
YSU advances a legitimate, nondiscriminatory reason for denying Ragozzine
tenure—“during his probationary period, he did not prove ‘consistent evidence of quality
performance and promise’ in scholarship.” ECF No. 53 at 20. YSU asserts that consistent
evidence of quality performance and promise is the measure used to consider whether to award
or deny tenure, and identifies this language in the CBA, Governance Document, and codicil.
ECF Nos. 58 at 16;49-5 at 25 (CBA); 49-6 at 9 (Governance Document); 49-7 at 1 (codicil); see
also ECF No. 40 at 38 (Giorgetti testified that “the single most important factor [in tenure
consideration] comes down to the CBA, which is showing future promise.”).
YSU provides ample evidence that individuals whom were part of the tenure review
process consistently stated that they found the quality of Ragozzine’s scholarship lacking and the
timing suspect—as a result, they did not believe he showed promise of future productivity. ECF
No. 53 at 21-22; see also ECF Nos. 41 at 8 (Professor 1's deposition in which she testified that
she was concerned about the names, numbers and dates of Ragozzine’s publications); 43 at 14,
37 (Professor 3's deposition in which he testified he was concerned about the “timing” and

22

(4:13cv750)
“nature” of Ragozzine’s publications, and that “the pattern of his publications suggested to me
that his promise for future productivity was not sufficient to be awarded tenure”); ECF No. 47 at
15-16 (Professor 7's deposition in which he testified that he considered Ragozzine’s potential
based on what he had done while at YSU); 51-59 at 1 (Professor 7's highly critical comments
regarding the substance of Ragozzine’s scholarship).
YSU also provides Professor 3's comments regarding Ragozzine’s tenure application:
First, his scholarship has been long in coming, and seems to have reached its
current level only as a last-minute flurry of activity in the year extension he
received of his probationary period. He claims in his tenure application that he
has four publications that should be considered. However, one is in a student
publication with a student he worked with in his capacity as a professor at
Missouri State before coming to YSU; the second is a pedagogically oriented
paper; the third is in a publication none of the department has heard of, and which,
in fact, seems to be an Indian university’s “home” journal; finally the fourth is
scheduled for publication in 2013, but 1/3 of the work (one of three experiments)
is actually his doctoral dissertation work from some two decades ago. This
despite being one of the few faculty members (maybe the first?) to receive
substantial funds for equipment ($11,000 +) with which he set up his laboratory in
2007, five years ago.

ECF Nos. 51-60; 43 at 31.9 Professor 3, while department chair, recommended to Ragozzine in
his 2008/2009 chairperson evaluation that Ragozzine’s “emphasis in the coming two years
should be in the area of publishing and/or grant work to strengthen your tenure application.”10

9

Only Professor 6 wrote favorable comments about Ragozzine’s scholarship. See ECF
No. 51-4. There is no evidence in the record explaining why Professor 4 voted in favor of
Ragozzine or why Professor 5 voted against Ragozzine. Professor 2 voted in favor of Ragozzine,
but did not elaborate on scholarship, only testifying that Ragozzine “did everything the governing
document said he should do.” ECF No. 42 at 8.
10

Professor 3 was the Psychology Department Chair until 2010, when Giorgetti became
Chair. ECF No. 52 at 4, ¶34.
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(4:13cv750)
ECF No. 51-39 at 1. Professor 3 also “strongly suggested” to Ragozzine that Ragozzine
participate in pre-tenure review, “so he would not be blindsided if he did not get a tenure
recommendation. Let me add, it would have given him time, potentially, to correct any
weaknesses that the tenured faculty saw.” Id. at 2; ECF Nos. 43 at 24.11
In Chair Giorgetti’s recommendation against tenure, she was also critical of the substance
of Ragozzine’s publications in addition to their timing. ECF No. 49-45 at 2. She wrote that the
“concerns which are based upon Dr. Ragozzine’s level of scholarship activity indicate that his
past performance in the area of scholarship is deficient and his promise for future satisfactory
scholarly endeavors is negligible.” ECF No. 49-45 at 2.
Dean Furnish also recommended against tenure, calling Ragozzine’s case “complicated”
and observing that “[t]he most intense scrutiny in Dr. Ragozzine’s case regards the record of
scholarship. . .” ECF No. 49-46. President Anderson testified that she concluded that
Ragozzine’s consistency was lacking when she made her decision to deny tenure. ECF No. 48 at
18-19. She testified that she considered the TDRC’s recommendation that Ragozzine be
awarded tenure, but ultimately decided to side with the department recommendation to deny
Ragozzine tenure because the TDRC represented “a group of individuals who are not in Dr.
Ragozzine’s department. They don’t know his work or the expectations within that department

11

Ragozzine did not participate in pre-tenure review. ECF No. 49 at 66. In his affidavit
he states that was unable to participate “because of the time I devoted to caring for immediate
family members.” ECF No. 54-1 at 2, ¶9. The Court notes that Ragozzine’s family members
became ill during the 2010/2011 academic year and he does not explain how these events
prevented him from participating in pre-tenure review in 2009/2010. Regardless, Ragozzine’s
lack of participation in the pre-tenure review is not material.
24

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or his collegiality within that department.” Id. at 24. In short, YSU asserts that “[a]ll of the YSU
officials involved in the decision making chain gave valid reasons for recommending or deciding
against tenure for Ragozzine unrelated to his gender.” ECF No. 58 at 17. This assertion is
supported by the record, and is a legitimate, nondiscriminatory reason for YSU to deny
Ragozzine tenure.
b. Ragozzine’s Pretext Arguments
To rebut YSU’s legitimate nondiscriminatory reasons as pretextual, Ragozzine must
demonstrate that: (1) YSU’s stated reason for not awarding tenure has no basis in fact, (2) the
reason offered was not the actual reason for denying tenure, or (3) the reason offered was
insufficient to explain YSU’s action. Harris, 594 F.3d at 486. “A defendant’s proffered reason
cannot be proved to be a pretext unless it is shown both that the reason was false, and that
discrimination [or retaliation] was the real reason.” Id. (internal quotation marks and citation
omitted). Ragozine advances two arguments why YSU’s reason is pretextual—(1) President
Anderson ignored the findings of the TDRC, and (2) “there is a factual issue as to whether YSU
stresses teaching or scholarship.” ECF No. 55 at 32-33.
Ragozzine fails to demonstrate that YSU’s reason for denying him tenure has no basis in
fact. Nor does he show that the reason offered was insufficient or not the actual reason. See
Harris, 594 F.3d at 486. He first submits that YSU “ignored the findings of the TDRC” because
President Anderson rejected the TDRC’s recommendation. ECF No. 55 at 32. The fact that
Anderson chose not to concur with the findings of the TDRC does not mean she “ignored” those
findings. Rather, Anderson testified that she “looked at [the TDRC’s findings] as yet another

25

(4:13cv750)
recommendation[.]” ECF No. 48 at 24.
Ragozzine misconstrues President Anderson’s testimony about her reason for not
following the TDRC’s recommendation. Anderson testified that the TCRC is “a group of
individuals who are not in Dr. Ragozzine’s department. They don’t know his work or the
expectations within that department or his collegiality within that department.” ECF No. 48 at
24. Referring to Anderson’s statement, Ragozzine argues that Anderson “raised her objection to
the makeup of the TDRC in hindsight. However, the CBA [] expressly excludes members from
the tenure applicant’s academic department [from sitting on the TDRC]” ECF No. 55 at 32.
Ragozzine concludes that “[t]here is no clearer evidence of record that Anderson’s articulated
statement is pretext.” Id. The Court disagrees. President Anderson’s testimony cannot
reasonably be read as objecting to the composition of the TDRC. Instead, Anderson merely
articulated a fact—the TDRC is not made up of members of the Psychology Department.
Anderson’s statement—that the TDRC “do[esn’t] know [Ragozzine’s] work or the expectations
within the department”—is also factual, and explained why she decided to credit the non-binding
recommendation of the Department Chair and Dean over the non-binding recommendation of the
TDRC.
Finally, Ragozzine contends that “there is a factual issue as to whether YSU stresses
teaching or scholarship.” Id. at 33. He argues that “YSU now takes a contrary position with
respect to the order of importance and the weight to be given to the three tenure criteria,”
scholarship, teaching and service. Id. It is Ragozzine’s contention that scholarship is not the
most significant criteria for determining tenure, but that teaching, which Ragozzine excels in,

26

(4:13cv750)
is.12 As evidence, Ragozzine identifies the codicil given to him when he was hired in May 2006,
which states that tenure is based on consistent evidence of quality performance, including
publication of two peer reviewed articles. Id. He indicates that the relevant section of the CBA
sets forth the “objective requirements of two publications, which Ragozzine met, and requests it
be used to gage [sic] future performance—a highly subjective prediction which is incapable of
proof.” Id. Ragozzine also offers the “Introductory Guidelines for New Faculty (Department of
Psychology)” which he alleges was given to him by the department chair when he was hired. Id.
He argues that the Introductory Guidelines for New Faculty “place the greatest emphasis on
teaching” which “creates a material issue of fact which must be decided by a jury.” Id.
The parties stipulated to the following: “[a]t all relevant times during his employment at
YSU, the terms and conditions of Dr. Ragozzine’s employment were governed by a []CBA []”;
“[t]he rules governing Dr. Ragozzine’s tenure application were contained in the 2011-2014 CBA
[], the psychology department governance document, and the codicil to his letter of
appointment”; “[t]he tenure procedure that was in effect at YSU in the fall of 2012 is set forth in
Article 10 of the CBA”; and “[i]f any part of the Psychology Department Governance Document
conflicted with the CBA, the CBA would prevail.” ECF No. 52 at 2, ¶¶5-8. See also ECF No.
40 at 38 (Chair Giorgetti’s deposition wherein she testified that “the single most important factor
comes down to the CBA, which is showing future performance.”).
Ragozzine, citing a memo addressed to new faculty dated 2006, asserts that “teaching is

12

This posture contradicts Ragozzine’s belief expressed in his August 2011 letter to the
Provost that his failure to publish would likely result in an unsuccessful tenure application. See
ECF No. 49-29 at 1.
27

(4:13cv750)
given the greatest amount of emphasis when faculty performance is evaluated.” ECF No. 55 at
13 (citing the “Introductory Guidelines for New Faculty,” ECF No. 54-2 at 2). Ragozzine does
not provide evidence, or even argue, that this document is a governing document. Moreover, the
document warns, “[r]eading this overview should NOT take the place of reading the entire CBA
and departmental governance document . . . . If any discrepancies are found between this
document and the CBA, assume that the CBA will prevail.” ECF No. 54-2 at 1. The Court also
notes that the sentence focused on by Ragozzine does not appear in the section that describes
tenure, but under a general section called “Departmental Issues” as the first item,
“Responsibilities of Faculty.” ECF No. 54-2 at 2.
Ragozzine’s disagreement with the tenure requirements evinced in the CBA, the
Governance Document, and the codicil to his employment letter, is not evidence that creates a
genuine issue of material fact. The Introductory Guidelines for New Faculty memo is not
evidence that creates a genuine issue of material fact. See Guarino, 980 F.2d at 403 (the
non-moving party must “show that there is doubt as to the material facts and that the record,
taken as a whole, does not lead to a judgment for the movant.”). Thus, Ragozzine has failed to
present evidence that YSU’s legitimate reason for denying him tenure was pretextual. His Title
VII claim, therefore, fails as a matter of law, and the Court grants YSU summary judgment on
the Title VII claim.
C. The 42 U.S.C. § 1983 Claim Against Chair Giorgetti and President Anderson
Ragozzine alleges that his procedural due process rights were violated because he was not
afforded “a fair tenure review process.” ECF No. 55 at 34. He also argues an equal protection

28

(4:13cv750)
violation based on the reasons expressed in his Title VII claim. ECF No. 55 at 33-34. Because
Ragozzine’s Title VII claim is without merit, his section 1983 claim for an equal protection
violation is also without merit. See Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 614
(6th Cir. 2003) (courts apply the McDonnell Douglas framework in Title VII cases to equal
protection claims brought pursuant to section 1983). Ragozzine’s due process claim is discussed
below.
1. Procedural Due Process
To succeed on a claim under 42 U.S.C. § 1983, a plaintiff must prove a defendant acted
under color of state law and deprived the plaintiff of a right secured under federal law. HandyClay v. City of Memphis, 695 F.3d 531 (6th Cir. 2012). Procedural due process prevents arbitrary
exercises of government authority without the opportunity to be heard. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542-543 (1985). Some form of due process, in the form of a prior
hearing, is required when there is a protected property or liberty interest. Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 569-570 (1972). The Sixth Circuit has held that a
university tenure applicant “has some minimal property interest in a fair tenure review process.”
Webb v. Kentucky State Univ., 468 Fed. App’x 515, 521 (6th Cir. Mar. 14, 2012) (quoting
Purisch v. Tenn. Technological Univ., 76 F.3d 1414, 1423 (6th Cir. 1996)). A university cannot
deny tenure without “some degree of impartial inquiry” into his qualifications. Id. (quoting
Purisch, 76 F.3d at 1423). The issue is not whether university officials “conformed to [the]
official [] procedure in reviewing the tenure decision,” but rather whether the applicant “was
afforded the process due to protect his property right to a fair tenure review process.” Purisch,

29

(4:13cv750)
76 F.3d at 1423-24 (affirming district court granting summary judgment to university on
professor’s section 1983 claim that the university’s grievance process following the denial of his
tenure application violated his procedural due process rights).
Ragozzine details Defendants’ acts that, he alleges, did not afford him a fair tenure
review process. He argues that the TDRC process was faulty and that “[its] role in affording
Ragozzine due process reflects a material dispute of fact.” ECF No. 55 at 35. He goes on to
argue that the TDRC’s finding was “only a recommendation which Anderson was not required to
follow. . . . The TDRC’s role is therefore a ‘paper tiger’—a sham proceeding, with merely an
empty pretense of any due process to Ragozzine.” Id.
Ragozzine’s does not explain or support with legal authority his apparent argument that
the non-binding nature of the TDRC’s recommendation rendered the review process unfair. Nor
does he advance evidence to support his allegation that his appeal was a “sham proceeding.”
Rather, he complains that President Anderson decided not to follow the TDRC’s non-binding
recommendation. This is not evidence establishing a due process violation. See Purisch, 76 F.3d
at 1424 (finding fault with the overall conclusion reached by a committee does not render the
process unfair).
Similarly, Ragozzine’s other allegations regarding President Anderson are not evidence
of unfair process. Anderson’s failure to “sign the review sheet,” ECF No. 55 at 15, does not
render the process unfair. His allegations that Anderson “did no independent investigation of
Ragozzine’s qualifications” is not compelling. During her deposition, Anderson stated under
oath that she “reviewed in detail the tenure application, the student evaluations, the chairperson’s

30

(4:13cv750)
evaluation, [and] the comments made by the dean.” ECF No. 48 at 10-11. She considered the
faculty vote and spoke to Dean Furnish, Chair Giorgetti, and Provost Kwawaja. Id. at 22-23, 19.
She carefully reviewed Ragozzine’s evaluations. Id. at 20-21. After she denied Ragozzine
tenure and he appealed, she considered the TDRC’s recommendation. Id. at 24. Anderson asked
Theresa Riley, the assistant provost, to provide additional information to her about Ragozzine’s
publications before she made her final decision. Id. at 11-12; ECF Nos. 50 at 7 (Riley
deposition); 51-31 (Riley’s report). Accordingly, “the evidence in the record indicates that
conclusion was the result of an impartial and thorough inquiry that easily satisfied the
requirements of due process.” Purisch, 76 F.3d at 1424
Finally, Ragozzine’s contention that “Giorgetti considered the recommendation of an
ineligible faculty member,” Coldren, is also without merit. ECF No. 55 at 14. Ragozzine argues
that, per the CBA, Coldren was ineligible to vote on his tenure application because Coldren was
on sabbatical at the time of the vote. Id. Despite Coldren’s ineligibility, Ragozzine points out
that Coldren attended the tenure meeting via Skype and was permitted to cast an unofficial vote.
Id. Ragozzine alleges that Chair Giorgetti’s recommendation, passed on to Dean Furnish, “did
not report the actual faculty vote []. Rather, [Giorgetti] included Coldren’s vote with the faculty
vote and characterized the results . . . as a ‘majority’ recommendation of the department.” Id. at
15.
Ragozzine’s characterization of Giorgetti’s recommendation is inaccurate. Chair
Giorgetti’s recommendation reads, in relevant part,
Considering Dr. Ragozzine’s performance in teaching, scholarship, and service,
the official faculty vote did not reach a consensus. Four faculty members
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(4:13cv750)
recommended tenure while four opposed a tenure decision. Dr. Coldren viewed
the personnel files prior to leaving campus on his sabbatical and utilized Skype to
attend the tenure presentation. He, however, was not permitted to officially vote
due to the CBA which states that the supplementary materials in Human
Resources need to be viewed. Dr. Coldren, however, voted to oppose tenure. (Dr.
Coldren’s vote is not in the official record, but is noted here to indicate the
majority faculty decision.)
ECF No. 49-45 at 3. Although Giorgetti ultimately characterized the faculty vote results as a
“majority faculty decision,” she clearly stated that Coldren was not permitted to officially vote
and accurately reported that the official vote was split four-four. See also ECF No. 46 at 14
(Dean Furnish deposition wherein he testified that he understood the faculty vote was 4-4).13
President Anderson testified that she did not consider Coldren’s unofficial vote. ECF No. 48 at
23. The record, therefore, does not support Ragozzine’s argument that permitting Coldren to
vote unofficially rendered the process unfair. See Purisch, 76 F.3d at 1423 (“Purisch alleges a
number of way in which [defendants] failed to follow [university] guidelines in overseeing his
grievance. Violation of a state’s formal procedure, however, does not in and of itself implicate
constitutional due process concerns.”). Ragozzine has failed to show that he was not “afforded
the process due to protect his property right to a fair tenure review process.” See id.
2. Substantive Due Process
Ragozzine relies on Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1988) in support of his

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Dean Furnish was asked,
Q:
Okay. So the vote was four-four but you acted as though it was five-four?
A:
No, No. I needed only to know that the department chair upheld those in the
negative. That was the key matter for me.
Q:
So the department chair, you adopted her vote?
A:
I supported her vote, yes.
ECF No. 46 at 14.
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(4:13cv750)
argument that Defendants denied him substantive due process. ECF No. 55 at 34. The
Gutzeiller court set forth the substantive due process standard:
Substantive due process . . . protects specific fundamental rights of individual
freedom and liberty from deprivation at the hands of arbitrary and capricious
government action. The fundamental rights protected by substantive due process
arise from the Constitution itself and have been defined as those rights which are
implicit in the concept of ordered liberty. While this is admittedly a somewhat
vague definition, it is generally held that an interest in liberty or property must be
impaired before the protections of substantive due process become available.
Even if such an interest has been impaired by governmental action, courts will
review the challenged decision only for arbitrariness or capriciousness. Indeed, in
the academic setting, as the Supreme Court made clear in Ewing, courts may
override a decision under substantive due process only if that decision is such a
substantial departure from accepted academic norms as to demonstrate that the
person or committee responsible did not actually exercise professional judgment.
Id. at 1328 (internal citations and quotation marks omitted).
In Gutzwiller, the Sixth Circuit affirmed a jury verdict that the defendants intentionally
discriminated against the plaintiff based on her sex when they denied her tenure, thereby denying
her equal protection. Id. Because of that finding, the court determined that the jury could have
also found the defendants denied the plaintiff’s substantive due process rights. Id. at 1329. The
court explained, “[c]ertainly, a decision to deny tenure on the basis of a candidate’s sex is, as a
matter of law, such a substantial departure from accepted academic norms as to demonstrate that
Fenik and Cohen did not exercise professional judgment.” Id.
Unlike the plaintiff in Gutzwiller, Ragozzine’s discrimination claim is without merit, as
explained above, and cannot, therefore, be the basis for finding that he suffered a substantive due
process violation. Moreover, as noted, Ragozzine has not shown that the recommendation by
Giorgetti or the decision by Anderson to deny him tenure was “such a substantial departure from

33

(4:13cv750)
accepted academic norms as to demonstrate that the person or committee responsible did not
actually exercise professional judgment.” See id. at 1328.
In sum, Ragozzine’s due process claim is without merit and Giorgetti and Anderson are
entitled to summary judgment. Moreover, because Ragozzine has failed to show he suffered a
violation of a constitutionally protected right, Giorgetti and Anderson are entitled to qualified
immunity. See Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002) (a plaintiff cannot
overcome the defense of qualified immunity when he fails to show a constitutional violation).
IV. Conclusion
For the reasons explained above, the Court grants Defendants’ Motion for Summary
Judgment in its entirety. The case is dismissed.

IT IS SO ORDERED.

February 24, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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